Tough on Terror, Short on Nuance: Identifying the Use of Force as a Basis for Excluding Resisters Seeking Refugee Status

Abstract

The use of force has been a significant feature of many political struggles and resistance movements. The consequences for its participants may include the possibility of persecution if not death. Some will flee and seek protection under the auspices of the 1951 Convention Relating to the Status of Refugees. Since the attacks of September 11th 2001, governments in Australia, Canada and the United States have passed broad national security legislation that effectively renders such persons inadmissible or excluded for the purposes of acquiring refugee status. Regardless of context, the targeting of government actors and the use of proportionate means, all political violence under such legislation becomes invalid. In this article, the author takes the position that such legislation should be repealed. In its place, Article 1F(b) of the Refugee Convention can be used to exclude those who engage in serious non-political crimes while allowing those who perpetrate legitimate political crimes to obtain refugee status. Article 1F(b) is the perfect tool as the purpose of the provision was to protect political resisters while excluding those who failed to observe the distinction between civilians and legitimate targets or who adopted disproportionate means and methods. Prevailing political crimes jurisprudence demonstrates that courts and tribunals possess the capability to differentiate between uses of force that are legitimate while rejecting those that are not. They have done so by engaging in nuanced and contextual analyses.